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Surveillance court ‘secret’ rulings slaughter Fourth Amendment to help NSA spy

Jul 07, 20135 mins
Data and Information SecurityEnterprise ApplicationsMicrosoft

As the DOJ says no to civil liberties and releasing FISA court decisions, details emerge about secret surveillance court rulings that exempt Fourth Amendment protections in order to help the NSA collect Americans’ communications.

Unlike most court proceedings, the Foreign Intelligence Surveillance Court (FISC) only hears one side — the government’s side — of any case. The public almost never learns about the rulings from the “secret” FISA court. Citing “current and former officials familiar with the court’s classified decisions,” the New York Times described some secret FISC (FISA court) rulings as being “nearly 100 pages long” and slicing away at our Fourth Amendment protections to better help the NSA spy on Americans.

“In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the ‘special needs’ doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures,” said a former intelligence official. “Applying that concept more broadly, the FISA judges have ruled that the NSA’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment.”

Yet as the ACLU pointed out, “Under the FISA Amendments Act, your calls and emails can’t intentionally be ‘targeted’, but they can certainly be collected.” Although the government’s reassurances have included that the NSA doesn’t listen in on Americans’ phone calls or read our emails, and that the NSA cannot “intentionally target” Americans, “the NSA has carved out several enormous loopholes in the law’s ‘targeting’ requirements.” The ACLU explained that “the program relies on loose standards and error-prone procedures to pull in massive quantities of our information, which can be retained and examined for years. “

In short, there is nothing inadvertent or accidental about it. The loopholes in the law allow the government to obtain, on a grand scale, exactly what officials suggest the NSA is forbidden from collecting: the contents of Americans’ communications.

But in reply to the ACLU [pdf] asking the FISC court to release some of its secret opinions, the Justice Department unsurprisingly asked the court to reject that request from the civil liberties group. Reuters reported that the DOJ attorneys wrote:

If the public had a right to any opinion from the surveillance court, the possible harms would be “real and significant, and, quite frankly, beyond debate.”

The government has also filed motions for an extension of time to respond to Microsoft and to Google, regarding the tech giants’ requests to release aggregate FISA order statistics.

What if the NSA only collects the innocuous-sounding metadata from millions upon millions of Americans who are suspected of no crime? Senator Dianne Feinstein defended the NSA’s dragnet surveillance by saying, “This is just metadata. There is no content involved.” That statement and other reassurances make it sound like machine-readable metadata has little value. Do you honestly think if metadata was incapable of painting a clear picture about each of us, that it would be collected? The data is stored; it’s searchable and it’s intrusive.

You’ve surely seen all manner of social media data-mining tools that can correlate relationships, link you to your interests, and graph those with whom you interact on social networks. Each node tells a detailed story about you. The metadata from your mobile phone gives an extremely comprehensive account of your life. MIT researcher Ethan Zuckerman said, “If you’re an average citizen with ‘nothing to hide’, it may be less obvious why your metadata may not be something you are comfortable sharing.” He understands that email metadata alone “paints a very revealing portrait of oneself.”  

To help illustrate his point, Zuckerman wrote about a project called “Immersion which uses Gmail metadata to map someone’s social network.” Immersion was meant to be about “self-reflection, art, privacy and strategy,” but this is the same type of “data that’s accessible to NSA analysts and to the marketing teams at Google.” Zuckerman said, “That makes me uncomfortable, and it makes me want to have a public conversation about what’s okay and what’s not okay to track.”

The Guardian suggested that you “do a personal thought-experiment: add to your email metadata the data from your mobile phone and finally your clickstream – the log of every website you’ve visited, ever – all of which are available to the spooks without a warrant. And then ask yourself whether you’re still unconcerned about GCHQ or the NSA or anyone else scooping up ‘just’ your metadata.”

If collecting metadata is so innocent (it’s not), and we are to be reassured by government guarantees, then why keep all the FISC rulings shrouded in secrecy? Why carve out ‘special needs’ exceptions in our Fourth Amendment protections to better help the feds hoover up and store our digital communications?

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ms smith

Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.